Oil and Gas, Natural Resources, and Energy Journal
Volume 3 | Number 1
May 2017
A Review of the Department of Defense’s Energy
Conservation Investment Program
Donald Cantrell
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ONE J
Oil and Gas, Natural Resources, and Energy Journal
VOLUME 3
NUMBER 1
A REVIEW OF THE DEPARTMENT OF DEFENSE’S
ENERGY CONSERVATION INVESTMENT PROGRAM
DONALD CANTRELL *
I. Introduction
The United States Department of Defense (“DoD”) is easily the world’s
largest consumer of energy when you consider its day-to-day operations. 1
To the extent the United States (“US”) demands a robust defense structure,
the US, by proxy, will remain the leading consumer of energy. Although
our Nation’s national defense structure plays an integral role in the
application of new, innovative energy-efficient technologies, the DoD can
play a larger role by promoting energy conservation and promoting new
energy conservation technologies. In effect, the DoD and its leaders
continuously seek new and innovative measures that will lead to cleaner
and more efficient energy. The DoD can model efficient energy use for
private entities. The following proposition accurately captures the mentality
of the DoD as it relates to energy consumption: remain ahead of all
potential foes. Although justified (and in no way misplaced) this mindset
often results in the private sector developing more efficient and cost-
*
Donald Cantrell is a May 2017 graduate of the University of Oklahoma College of
Law. Donald would like to thank the members of the Oil and Gas, Natural Resources, and
Energy Journal for their help in the review process of this comment.
1. Jerry Warner & P.W. Singer, Fueling the "Balance" — A Defense Energy Strategy
Primer,
The
Brooking
Institution
(2009),
http://www.brookings.edu/wpcontent/uploads/2016/06/08_defense_strategy_singer.pdf (“The U.S. Department of Defense
is the world’s single largest consumer of energy, using more energy [during] its daily
operations than any other private or public organization, as well as more than 100 nations.”).
1
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effective energy consuming technologies due to the emphasis from the DoD
on creating more efficient energy technologies and uses.
The Army and other DoD agencies can reduce their current energy bill—
valued at $19.4 billion—by promoting and utilizing energy-efficient
technologies and practices.2 Because the DoD thought that relying on one
form of energy could potentially undermine its effectiveness, it created a
special program—the Energy Conservation Investment Program (“ECIP”). 3
The ECIP’s primary objective is to fund annual construction projects
through defense-wide military construction appropriation.4 This Comment
will examine the approval, funding, and subsequent reporting requirements
of the ECIP and the ECIP’s progress toward developing new energyefficient technologies and practices. Projects the ECIP approves or sponsors
tend to serve the following three purposes: (1) energy or water
conservation; (2) renewable electricity generation; or (3) energy security
promotion. 5 Integrating new, more efficient technologies may help the DoD
reduce its energy footprint and perhaps optimize its existing energy
resources in local military installations—domestic and abroad. But when it
comes to new and innovative energy uses, the DoD and its predecessor
agencies have a history of self-entity introspection. 6 The history of the
agencies within the DoD has provided a framework for the department to
utilize new alternative energy forms. The switch from coal-powered ships
to fuel-oil-powered ships is an example of this kind of innovation. 7
Advances in new energy-efficient uses and technology could spill into the
private sector, providing better and more reliable energy use and
consumption.
At the turn of the nineteenth century, Great Britain’s navy had a worldchanging decision to make. By that time, those enlisted in the British Navy
2. See Jeremy S. Scholtes, On Point for the Nation: Army and Renewable Energy, 34
ENERGY L.J. 55, 60 (2013) (“If the Army can reduce energy use in general, through
efficiency upgrades and better user practices, then it can reduce its overall consumption.
Reduction in consumption . . . reduces the Army's portion of the $19.4 billion energy
bill . . . .”).
3. U.S. GOV’T ACCOUNTABILITY OFF., GAO-16-162, Defense Infrastructure Energy
Conservation Investment Program Needs Improved Reporting, Measurement, and Guidance
1 (2016).
4. Id.
5. Id.
6. The DoD officially established the ECIP during fiscal year 1976. Id.
7. F. William Engdahl, Oil and the origins of the ‘War to make the world safe for
Democracy’ (June 22, 2007), http://www.engdahl.oilgeopolitics.net/History/Oil_and_the_
Origins_of_World_W/oil_and_the_origins_of_world_w.HTM (last visited May 17, 2017).
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could hardly have fathomed that their service would have a lasting effect on
global politics and subsequently the world’s transition to an alternate
energy source that would eventually drive global economies. But the
foregoing occurred after the British Navy converted its fleet from coalbased to oil-based equipment:
After the 1890’s, though little publicized, the search for secure
energy in the form of petroleum would become of paramount
importance to Her Majesty’s Navy and Her Majesty’s
government. A global war for control of oil was shaping up, one
few were even aware of outside select policy circles. 8
Necessity breeds innovation. Looking through the lens of world history,
the English saw its empire slipping from its fingertips. The reason: The cost
in both human and traditional forms of capital to maintain coal-powered
ships around the world was a great expense. This high expense needed
review if the British Navy was to maintain its prestige as one of the world’s
then most powerful naval forces. 9
To keep pace with rivaling empires, the British made the strategic
decision to switch its naval forces from coal to oil.10 Lord Admiral Fisher, a
well-known figure in British naval history and then merely a captain,
argued for the switch. 11 His rationale: A ship with an oil-based combustion
system did not leave the same trail of smoke visible for miles. 12 The work
required to make a coal-based ship operational ranged from four to nine
hours; comparatively, a ship with an oil-based combustion system could be
operational within thirty minutes and reach its top speed within five
minutes while at sea. 13 The on-loading of fuel for oil-based ships required
the work of twelve men working twelve-hour shifts. 14 Even so, reaching
equal propulsion capacity with a coal-powered ship required a workforce of
500 men working 5 non-stop days; moreover, ships fueled by oil could
travel four times the distance. Yet with a fuel oil ship being able to travel
8. Id.
9. The British Navy earned its reputation from fierce sea battles such as the Battle of
Trafalgar, where the British Navy defeated the combined forces of both French and Spanish
armadas. See Stephen Paul Coolbaugh, Raiders of the Lost . . . Sub? The Potential for
Private Claims of Ownership to Military Shipwrecks in International Waters: The Case of
Japanese Submarine I-52, 49 BUFF. L. REV. 929, 930 n.2 (2001).
10. Engdahl, supra note 7.
11. Id.
12. Id.
13. Id. at n.13 (citations omitted).
14. Id.
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four times the distance of a coal-powered ship, the additional labor was a
fair trade-off since for a coal-power ship to reach equal propulsion capacity,
a navy had to commit a workforce of 500 men working at five non-stop
days. 15 But by the turn of the twentieth century, the Anglo-Persian Oil
Company gained access to ancient Mesopotamia from the Persian Shah. 16
These events marked the shift to oil-powered naval warships, prompting the
US Navy to switch from coal to fuel oil and later capitalize on the energy
and cost savings.
By promoting ECIP, the DoD has the potential to cause the next
paradigm shift like the British Navy when it transitioned from coal to fuel
oil. The DoD created ECIP to be this proving ground. But for ECIP to
realize this potential, the DoD needs two things: additional oversight and
more implementations to prove its ultimate worth. This Comment will
examine the policies and instructions that created ECIP and discuss how the
DoD can improve the program to provide a greater example of efficient
energy use. The DoD intended to use the ECIP to meet then-President
Obama’s expectation of it adding three gigawatts of renewable energy to its
energy portfolio. 17
Part II examines the statutory guidelines that created ECIP and ensure its
continued existence. Part III describes three examples of litigation that may
result from the execution and implementation of an ECIP project. Part IV
explores the Government Accountability Office report and its findings on
the ECIP project. Part V discusses how the DoD’s vision to promote and
create more efficient energy technologies and practices is not proving to be
demonstrably effective. Finally, Part VI reviews the need for the DoD to be
energy independent in the interest of national security and how the DoD can
achieve this goal through more efficient energy use.
II. Statutory Guidelines
At an unfathomable rate, the DoD’s electricity use exceeds 30,000,000
Mega Watt Hours (“MWH”) per year—this translates to $2 billion per
year. 18 Remarkably, nearly all the electricity supplied to DoD installations
comes from the civilian energy market. 19
15. Id.
16. Id.
17. See The White House, President Obama’s Climate Action Plan, Second Anniversary
Progress Report (June 2015), http://obamawhitehouse.archives.gov/sites/default/files/
docs/cap_progress_report_final_w_cover.pdf.
18. Warner, supra note 1.
19. Id.
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Title 10 § 2924 of the United States Code provides the following: For an
energy resource to be defined as renewable, the energy resource must
emanate from solar, wind, biomass, landfill gas, ocean tides or currents,
geothermal, municipal solid waste, hydroelectric generation built after
1998, or any thermal energy created from the aforementioned sources.20
A great deal of the DoD’s innovation around renewable and efficient
energy resources consists of its installation infrastructure.21 To improve its
energy efficiency and maximize the utilization of its installations, the DoD
established ECIP. ECIP provides funding for construction projects within
the DoD and aims to create energy efficiency through new innovative
designs. 22
Another statute—10 USC § 2914—authorizes the Secretary of Defense
(“SECDEF”) to approve military construction projects for energy
conservation not previously authorized and to use money specially
allocated for energy conservation construction projects.23 Once the
SECDEF authorizes the military construction project under ECIP, the
SECDEF then must notify Congress of the approval and the project may
commence after a fourteen or twenty-one day waiting period. 24 ECIP’s
goals are as follows:
a) Dramatically reduce energy consumed at an individual
installation or joint base;
b) Integrate multiple energy savings, monitoring, or
renewable energy technologies to realize synergistic
benefits;
c) Implement a documented energy plan for a given
installation, region, department or Component. Special
consideration will be given to projects that are part of an
installation energy master plan; and
d) Implement a technology validated in a demonstration
program . . . or an innovative technology that represents
20.
21.
22.
23.
24.
10 U.S.C.A. § 2924 (7) (A-I) (West).
Warner, supra note 1.
U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 1.
10 U.S.C.A. § 2914(a) (West 2016).
Id. § 2914(b).
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a potentially significant improvement over existing
technology. 25
There are two categories of ECIP funds. The first category is for
construction funds. These are appropriated for the construction of approved
ECIP projects and can be obligated for four years after initial approval. The
construction funds are usually obligated through design/bid/build contracts
with the base installation. 26 The second category is for planning a design.
These funds are set aside for the initial design and planning by architects
and engineering firms; these funds may be rolled over into subsequent
years, but only if the funds were originally obligated for that purpose.27
The DoD uses several different programs to provide for energy
conservation. As a result, other DoD construction projects may also use
technology to provide for energy conservation.28 The DoD budgeted $500
million for investments in conservation and promotion of energy
efficiency. 29 This was mostly to fund improvements geared toward
increasing energy efficiency for legacy buildings and structures.30 For fiscal
year 2015, ECIP funded $160 million for construction projects and $10
million for planning and design—the total military construction budget
authority totaled roughly $6.5 billion.31 Unfortunately, the ECIP
encompasses only a small portion of the total construction budget for the
DoD. 32 These funds are competitively sought throughout the agency. Each
defense component must submit plans to the Office of the Deputy Assistant
Secretary of Defense for Installation Energy (“IE”) for evaluation and final
approval. 33
The IE ranks, prioritizes, and approves the submissions based on three
factors or areas of energy conservation: renewable energy, energy
efficiency, and water conservation. For fiscal year 2017, the funding
25. Memorandum from the Office of the Under Sec’y Def. on FY 18 Energy
Conservation Investment Program (ECIP) and Plans for the Remainder of the Future Years
Defense Program (Aug. 30, 2016), http://www.acq.osd.mil/eie/Downloads/IE/FY2018%20
ECIP%20Guidance%20Memo%20and%20Attachment%20A.PDF.
26. Id.
27. Id.
28. See U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 8.
29. Id.
30. Id.
31. Id. at 1-2.
32. Id.
33. Memorandum from the Office of the Under Sec’y Def. on FY 18 Energy
Conservation Investment Program (ECIP) and Plans for the Remainder of the Future Years
Defense Program.
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allocation for these areas is twenty-five percent renewable energy, sixtyfive percent energy efficiency, and ten percent water conservation.34 The IE
further scrutinizes the ECIP proposals using a holistic approach based on
the following factors:
a) Net Present Value - based on project provided savings to
investment ratio ([“]SIR[”]), economic life, investment
value and annual savings values;
b) Service Priority;
c) The degree to which projects are part of a documented
installation, region, department or component energy
plan. Special consideration will be given to projects that
are part of an installation energy master plan;
d) The degree to which projects implement a demonstrated
test bed technology or other innovative technology . . .;
e) The degree to which projects integrate multiple
technologies to realize synergistic benefits; and
f) The degree to which projects contribute to annual energy
efficiency, renewable energy and water conservation
goals . . . . 35
The IE ensures a net benefit to the defense component installation by
relying on the factors above. However, a project may not receive approval
even if it could have great benefit to the installation. The project may not
obtain approval if it does not fall within the parameters listed, or simply
because one installation has a greater need than another, such that it
receives priority funding. After approval by the SECDEF, the IE is
responsible for notifying Congress of the approval. The IE operates as the
central hub for the management of the program and is responsible for
reporting back to Congress on the important milestones and status of the
ECIP projects. The IE is also responsible for all record keeping of the ECIP
projects. 36
Because ECIP is a program within the DoD, the program falls under
DoD instruction 4170.11 (“DoDI 4170.11”), which states that the DoD is
“to provide leadership to promote energy efficiency, water conservation,
34. Id. at 2.
35. Id. at 3.
36. Id.
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the use of renewable energy, and help to foster markets for emerging
technologies.” 37 This instruction applies to all entities within the DoD and
“[p]ertains to all phases of administration, planning, programming,
budgeting, operations, maintenance, training, and materiel acquisition
activities that affect the supply, reliability, and consumption of facility
energy.” 38 The instruction creates a policy for the DoD to use utility
commodities efficiently and directs the DoD to maximize water
conservation efforts. The instruction specifically directs DoD entities to
monetarily promote and fund cost-effective renewable energy sources and
energy-efficient facility designs. 39 ECIP provides many opportunities for
the DoD to invest in cost-effective renewable energy sources through the
planning and design of their facilities.
Additionally, this instruction specifically mentions ECIP in that the
instruction directs the Assistant Secretary of Defense for Energy and
Installations, and Environment (“EI&E”) to provide oversight in the
administration of the Energy Conservation Investment Program. 40 The
instruction orders the heads of DoD components to report execution of
ECIP projects. 41 The ECIP reporting requirements state that the different
components are to provide quarterly project status updates for active ECIP
construction projects within thirty days of the end of each fiscal quarter.42
The instruction states that Congress appropriates the funding for ECIP
projects and those funds will be distributed on a fair share basis between the
DoD components as reported by installation energy use for the previous
five years. 43 The instruction also directs that ECIP funding be applied to
projects which produce energy savings or cost reduction, and the potential
savings must be identified in the proposal stage and then audited after
approval and implementation. 44 The instruction emphasizes the importance
of the ECIP program, its funding, and subsequent completions and energy
conservation reports.
DoDI 4170.11 states that DoD entities must comply with the Energy
Independence and Security Act of 2007, Energy Policy Act of 2005, and
37. Dep’t of Def. Instruction 4170.11, Installation Energy Management (Dec. 11, 2009)
at 9, http://www.dtic.mil/whs/directives/corres/pdf/417011p.pdf.
38. Id. at 1.
39. Id. at 2.
40. Id. at 6.
41. See id. at 7.
42. Id. at 11.
43. Id. at 13.
44. Id.
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Executive Order 13693. 45 The Energy Independence and Security Act of
2007 (“EISA”) amended an energy-usage goal of reduction by thirty
percent by fiscal year 2015 in federal buildings 46 and required that a
percentage of the new energy used be obtained by new renewable
resources. 47 The Energy Policy Act of 2005 requires the Secretary of
Energy, acting on behalf of the President, to ensure as far as possible that
the federal government electrical energy consumption provided by
renewable energy is not less than seven-and-a-half percent after 2013. 48
This legislation did not detail how each federal agency was to make up their
part of the renewable energy plan but stated that later legislation would
create the detailed directives. Executive Order 13423, 49 sought to reduce
greenhouse gas emissions and water consumption within the federal
government. 50 The order was enacted to (1) reduce 40% of the federal
government’s greenhouse gas emissions by 2025 and (2) “[t]o improve
environmental performance and Federal sustainability, priority should first
be placed on reducing energy use and cost, then on finding renewable or
alternative energy solutions.” 51 The underlying objective of the order was
fourfold: (1) increase the DoD’s renewable energy portfolio; (2) increase
water security; (3) ensure that Federal facilities continue to meet mission
requirements; and (4) enable the DoD to lead by example.52
III. Selection and Contractual Issues Resulting
from Approval of an ECIP Project
Because ECIP projects require closely tracked metrics, problems can
easily arise at the early stages once the DoD approves a construction or
45. See 42 U.S.C.A. § 15852 (West 2005); 42 U.S.C.A. § 8253 (West 2012); see, e.g.,
Energy Independence and Security Act of 2007, Pub. L. No. 110-140, § 431, 121 Stat. 1492
(2007); Pub. L. No. 109-58, § 203, 119 Stat. 594 (2005); Dep’t of Def. Instruction 4170.11,
supra note 37, at 10.
46. See Pub. L. No. 110-140, § 431; 42 U.S.C.A. § 8253 (West).
47. Scholtes, supra note 2, at 63.
48. See Pub. L. No. 109-58, § 203.
49. On March 25, 2015, Executive Order 13,693 revoked the mandates of “E.O.
13423.” See The Federal Register, The Daily Journal of the United States Government,
Strengthening Federal Environmental, Energy, and Transportation Management,
http://www.federalregister.gov/documents/2007/01/26/07-374/strengthening-federalenvironmental-energy-and-transportation-management (last visited May 18, 2017).
50. Proclamation No. 13,423, 72 Fed. Reg. 3919 (Jan. 26, 2007).
51. Proclamation No. 13,393, 80 Fed. Reg. 15,871 (Mar. 19, 2015).
52. Id.
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refurbishment project under the program. The cases that follow illustrate
problems that may occur during an ECIP project.
A. The QES Dispute
Once a project is selected for approval under the ECIP program, and
becomes a designated “ECIP project,” some impediments may cause the
project never to come to fruition. A dispute from the Armed Services Board
of Contract Appeals, between the federal government (the “government”)
and Quality Environmental Systems, Inc. (“QES”), illustrates such
impediments. 53 There, the government sought to terminate a contract with
QES because QES breached its contractual obligations.54 Organized in
1974 by professional engineer P. Richard Boone, QES formed to engage in
a new concept of “Socio-Technology.” 55 Although QES aimed to unite
engineers and scientists together in an effort to solve complex technical
problems that occur during construction projects, its primary objective
centered on maintaining and improving the environment when solving these
technical issues. 56 QES developed an analysis referred to as a “quality
audit,” which was an in-depth evaluation of the information concerning a
construction project or the functions of an existing facility. 57
Through contracts awarded by the Army Corps of Engineers Savannah
District, QES applied the “quality audit” to Army installations in Georgia
and surrounding areas to determine how the DoD could conserve energy. 58
This contract required QES to perform quality audits on wastewater
disposal and utility plant operations at Fort Benning, Georgia. 59 In addition,
the contract required QES to design an energy conservation system for the
base installation, containing an automated central control system for all
systems and facilities on the base creating or using energy. 60 This project
was part of the ECIP. 61 The Army Corps of Engineers wanted QES to build
one central control room for the base and three remote control centers
allowing the base to monitor its utility energy usage. 62 Doing so required
the installation of many sensors and alarm devices that relayed information
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
QES, Inc., ASBCA No. 22178, 78-2 BCA ¶ 13,512.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
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back to the central control room. 63 The government was paying for this
project either by recovery or amortization over the span of 2.8 years
through the utility and workforce savings created as a result of the energy
conservation project. 64 But because the project was a part of the ECIP, the
contract required a detailed study on energy consumption, applications, and
a cost justification based on proposed energy savings. 65
Since the project at Fort Benning was part of the ECIP program, it had
an ECIP contract. The dispute turned on the interpretation of two clauses.
The first clause stated that the government would not be liable for any costs
incurred by QES outside of the original contract without prior approval
from the government contracting official.66 The other clause gave the
government contracting official exclusive authority to terminate the
contract in the event QES breached any of its contractual obligations.67 As a
qualification for any project within the ECIP program, this made the
contractual requirements in this instance different from contracts previously
awarded to QES because of the special reporting requirements for an ECIP
project. 68 This meant that including the project in the ECIP program
became a major dispute. 69 At one review meeting, the government asked
QES to resubmit a fee proposal because the savings costs on manpower
could not be paid by the government. 70 Rather, the savings costs must come
from reduced energy consumption since the project received approval based
on a cost savings benefit. 71 The result: the contract was modified and QES
received a higher fee once the project was complete.72 But QES did not
leave the dispute without new obligations: it had to supply the government
with more detail about the projected energy savings. 73
Negotiations began in 1976, and the project received authorization in the
1977 fiscal year. 74 However, by 1977, the government moved to terminate
the contract because QES failed to provide detailed reports that justified its
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
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cost and savings as required by the construction project. 75 Rebutting this
claim of incompliance, QES argued that (1) they performed some of the
services and alterations requested in the contract for the installation and (2)
presented enough detailed data of the proposed cost savings from the
project. 76 Ultimately, the court held that the requirement for a detailed cost
justification in the design submission was plainly evident in the contract.77
This meant that the government had appropriate grounds to terminate the
contract because of the absence of a detailed cost justification. 78 The court
found evidence that the government emphasized the importance of this
requirement on several occasions and that QES even acknowledged the
need of such data for the project’s design. 79 In the end, the court held the
government was justified in terminating the contract. 80
B. The SACS Dispute
A contractual dispute at Kelly Air Force Base provides another example
of potential issues in an ECIP project. 81 The dispute arose from yet another
ECIP project requiring a detailed set of drawings and specifications of the
air conditioning system to be modified at the awarding of the contract.
When taking bids from private entities about proposed government
construction projects, the government is required to have a reasonable
amount of detail in the submitted drawings for the project.82 DEW, Inc. and
its subcontractor, San Antonio Control Systems, Inc. (“SACS”), received a
fixed price construction contract for $615,000.83 The contract concerned the
installation of an air conditioning system on a building on the base.84 SACS
submitted diagrams depicting a set point adjustment (“SPA”) in the
mechanical room of the building. 85 An SPA is a device that receives data
from sensors located throughout the building, including the exterior of the
building about air temperature.86 Based on the data received, an SPA allows
an installation manager to remotely adjust fans, dampers, and valves to
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
Id.
Id.
Id.
Id.
Id.
Id.
D.E.W., Inc., ASBCA No. 28304, 83-2 BCA ¶ 16,914.
Id.
Id.
Id.
Id.
Id.
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meets the climate needs of each building. 87 Essentially, “[t]he contract
drawings provide for tubing running between the SPA controls in the main
mechanical room and the controls and the [thirty-eight] individual air
handling units to provide the means for transmitting remote control
signals.” 88 And the diagram’s specifications indicated that the lines, if not
made of metal tubing, must be coated in metallic tubing. 89
Rather than use the required material, SACS used a flame-retardant
polyethylene tube covered by polyethylene tubing. 90 The government did
not approve of the plastic tubing because it did not conform to the original
diagrams as set out in the contract. 91 SACS then requested a deviation from
specification, which the government also rejected.92 After these two
rejections, SACS stated that neither the SPA nor the tubing coming out of
the SPA was specified in the contract—it sought relief from this
obligation. 93
The court held that the diagrams submitted by SACS clearly depicted a
SPA. 94 Moreover, the court determined that the diagrams SACS initially
submitted—which aided SACS in securing the contract at the outset—had
enough specificity to give the contracting officer grounds for rejecting
SACS’s request to deviate from its design specifications. 95 In sum, the
contractual agreement between SACS and the government “adequately
delineated” that there existed a “requirement to furnish [SPA] controls in
the main mechanical room together with associate lines.” 96
C. The Sealtite Dispute
The Sealtite case is yet another illustration of contractual problems
created by a ECIP construction projects. 97 This ECIP project concerned the
awarding of a contract with Sealtite Corporation to install insulation in two
aircraft hangars at the Randolf Air Force Base in San Antonio, Texas for
$136,000. 98 Although the language in the contract suggested that the
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Sealtite Corp., ASBCA No. 26209, 83-2 BCA ¶ 16,792.
Id.
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bidders would visit the hangars in which it would install insulation for a
visual inspection, Sealtite did not do so.99 Sealtite’s proposal for the bid
was based on Sealtite using its own brand of spray-on insulation—called
“Sealspray”—that the company had used for over thirty years. 100 Because
of World War II specifications, the hangars had roof decks made of metal
edged gypsum planks that only increased energy consumption.101 Overall,
the Air Force wanted its hangars insulated to minimize energy
consumptions and prevent heat loss.102
Sealtite’s plans originally required the use of spray-on insulation on the
hangars. 103 But after inspection, Sealtite representatives realized that the
sheer weight of the total insulation required to complete the project would
cause the insulation to fail within two years and compromise the integrity of
the hangar’s ceilings. 104 As an alternative, Sealtite proposed “to install
fiberglass blanket insulation with reinforced aluminum backing at an
additional cost of $26,340.” 105 The government complied, and after
installation of the fiberglass insulation, Sealtite submitted an invoice
requesting an additional $26,000 in expenses incurred for installing the
fiberglass alternative. 106 The contracting officer denied Sealtite’s request.107
Sealtite appealed, arguing that it could not possibly perform its contractual
obligations within the contracted price because of the hangar’s
conditions. 108
The court held that there was commercially available spray-on insulation
from other manufacturers that Sealtite could have used that would not have
damaged the roof of the hangars. 109 The court stated the following:
It is a well-established rule that where the government issues
design specifications of a detailed nature, it warrants the
adequacy, sufficiency, and efficacy of such specifications, and
the event that they prove defective or impossible to perform, it
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
Id.
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Id.
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must compensate the contractor for the additional costs in
attempting performance. 110
The court held there was no change in the scope of the contract and would
not allow Sealtite to receive additional money because Sealtite could have
followed the contract’s specifications without incurring additional costs.111
These three cases—QES, SACS, and Sealtite—provide examples of how
closely the courts construe contract terms in ECIP projects. There is a great
need for specificity in ECIP contract drafting before an approval will be
granted from the DoD. Most of the necessary specificity comes from the
requirement to show the process, in dollar amounts, by which the ECIP
project will save DoD installations money on its energy consumption. It is
possible the strict construction view on the contracts might deter contractors
and corporations from ECIP projects in favor of more traditional
construction plans. But it is imperative that the developers and innovators
behind the ECIP projects provide enough specificity in the contract for it be
awarded and successfully meet the requirements of the ECIP program. The
more ECIP projects approved—and finished—the more experience
government contractors will have in constructing or modifying existing
installations. This could potentially lead to the contractors submitting more
bids on future ECIP projects.
A project at Fort Hunter Liggett provides an example. During the
summer of 2015, Fort Hunter Liggett began an ECIP project valued at $22
million, with the goal of bringing the installation’s net energy use to zero. 112
The goal of Fort Hunter Liggett is to have a net zero effect on its security
and sustainability needs because a net zero energy installation produces as
much energy as it expels in any given year. 113 The Fort Hunter Liggett
project will be first ECIP project to achieve net zero energy use, and the
Army Corps of Engineers hopes to use the project as a model for future
projects. 114 The key cog in the Fort Hunter Liggett plan is to place
photovoltaic solar panels on fifty buildings. The project’s goal is for the
installation to generate as much energy as it expands. Other parts of the
plan called for more efficient lighting in buildings, new meters to record the
110. Id.
111. Id.
112. Julia Bobick, U.S. Army Engineering and Support Center, Huntsville, ECIP projects
inching Fort Hunter Liggett toward Net Zero, http://www.army.mil/article/148115/ECIP_
projects_inching_Fort_Hunter_Liggett_toward_Net_Zero (last visited May 18, 2017).
113. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 20.
114. Bobick, supra note 112.
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energy consumption, and even new microgrid control systems for heating
and cooling buildings on the installation. 115 As the project at Fort Hunter
Liggett continues, it is imperative the Army Corps of Engineers monitor the
private contractors making the additions to the installation. This will ensure
the private contractors adhere to the contract specifications and then the
Army Corps of Engineers can accurately report the energy savings up their
chain of command, thus fulfilling the design of ECIP.
IV. Government Accountability Office Report on ECIP Projects
All government employees—and the projects endorsed by various
government agencies—need to be good stewards of taxpayer money. ECIP
need even more oversight because the cost savings and lowered energy use
must be observed and reported. By properly reporting the energy and cost
conservation, the ECIP will have greater success at implanting ECIP
projects in other DoD installations—both foreign and domestic.
Although its intent is not to undermine the executive branch’s continued
endorsement of renewable energy use and energy conservation in the DoD,
Congress has offered its own interpretation on ECIP question and oversight.
In May 2014, Congress voted to give the program oversight in Senate
Report 113-174. 116
Projects such as energy security microgrids, net-zero facilities
and renewable energy projects have the potential to offer long
term pay-back that far exceeds initial investment, while
concurrently driving innovation. In an environment of
heightened security risks and growing concern over carbon
emissions, it is more important than ever for D[o]D to maintain
robust investment in ECIP to reduce installation energy
expenses, limits carbon emissions, and enhance installation
energy security. 117
In its report, the Senate praised ECIP but thought the program warranted an
audit to determine the exact value DoD was bringing to bear. The Senate
Committee appointed the Comptroller General of the Government
Accountability Office (“GAO”) to review the funding of ECIP projects and
then determine how much money the projects had actually saved the
115. Id.
116. S. REP. NO.113-174, at 16-17 (2014).
117. Id.
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DoD. 118 The Senate Report noted the DoD had previously reported the
ECIP projects caused savings of two billion dollars since 2001. 119 The
Senate wanted verification of the reduction in energy use by specifically
examining how much ECIP saved the DoD in energy costs and
consumption. 120 Congress wanted to know how the projected rates of
reduction in costs and use compare with actual costs and reduction.121
The GAO report dated January 29, 2016, examined the annual
notifications of the 441 ECIP projects that the DoD provided to Congress
from 2009 through the end of 2015.122 The report found the DoD did report
annually to congressional committees about ECIP projects concerning the
location and cost of the individual projects.123 The DoD had an obligation
to comment on any changes to ECIP projects in its annual reports to
Congress. 124 However, during one instance, Congress learned that the DoD
was not reporting certain information about return investments, energy
conservation, and water conservation in some ECIP projects. 125 The report
noted that of the 441 projects reviewed in the report over the five-year
period, the DoD only reported on seventy-nine percent of the projects’
anticipated returns on investment. 126 Concurrently, none of the reports
given to Congress stated any information concerning energy, or water
savings or about the status of renewable energy production.127
The report discussed how the DoD mandated the anticipated rate of
return on investment, energy, and water conservation in an ECIP project
submittal, but failed to report this information after commencement of a
project. This is vital information because it is used during the ECIP
selection process to determine which projects will receive ECIP funding
and subject to special ECIP progress reports. The GAO report stated the
DoD did not communicate return on investment or water conservation to
Congress because of the absence of law and DoD guidance that obligated
the DoD to report this information.128 The report also noted how the DoD
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
Id
Id
Id at 17.
Id.
U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 2.
Id. at 10.
Id.
Id.
Id.
Id.
Id. at 12.
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did not have any reporting requirement whatsoever for the component
entities to report to Congress about anticipated water or energy
conservation. 129 Essentially, if there is nothing requiring the DoD to report
anticipated energy or water conservation, then the installations will not
report on the return rate unless required.
The GAO found no established authority directing DoD component
entities to report to Congress on changes in anticipated return on investment
brought on by significant changes in the project.130 In its report, GAO
investigated the complete absence of anticipatory information in previous
reports to Congress. 131 However, in a report that directly dealt with ECIP
programs, GAO acknowledged the existence of a statutory requirement that
detailed the need for this kind of information.132 In pertinent part, the report
points outs that “the Standards for Internal Control in the Federal
Government provide guidance for communicating with external
stakeholders information that may have a significant effect on an agency
achieving its goals.” 133 GAO concluded that the different DoD components
should have included the same information it used for anticipating rates of
return in the selection of project in the reports sent to Congress because this
is information that satisfies the rules in the Standards for Internal
Control. 134
DoD component officials circulated internal reports on returns on
investments and energy and water conservation on ECIP projects, but did
not provide Congress with these reports. 135 When asked why it withheld the
internal reports, the DoD components responded that if it provided this kind
of information, then in the future the DoD may be required to provide even
more detailed reports, which could compromise security. Despite
withholding this information, the DoD components stated that had Congress
initially asked for such information, it would have provided it.136
Inadequate communication will only harm the ECIP program. For money
to be allocated to the program, Congressional committees require evidence
129. Id.
130. Id.
131. Id.
132. Id. at 13.
133. Id.; U.S. GOV’T ACCOUNTABILITY OFF., GAO-14-704G, Standards for Internal
Control in the Federal Government (2014) (“The standards provide criteria for assessing the
design, implementation, and operating effectiveness of internal control in federal
government entities to determine if an internal control system is effective.”).
134. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 13.
135. Id.
136. Id.
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of a firmly established energy conservation program. The personnel
appointed with proper authority must be given highly detailed
information—both supportive and contrary—on ECIP matters. Thus, the
ECIP can be tailored into a program that positively affects energy
conservation within the DoD. 137 DoD guidance requires each agency to
have at least a 1.25 return on investment for each ECIP project and
collectively for the projects to average a 2.0 return on investment. 138 If each
component can meet the 2.0 average, this means that for every dollar spent
on a completed project, the component receives two dollars in savings for
energy consumption. 139
Additional GAO findings suggest that the DoD has not, on a consistent
basis, reported that ECIP projects have energy reduction or saving in
federal money spent on energy consumption. 140 The GAO report looked at
thirty-five continental ECIP projects that DoD components designated to be
“complete” after 2011.141 Eight of the thirty-five projects provided
information exhibiting a cost savings and/or a reduction in energy
consumption. 142 Two of the remaining twenty-seven projects were no
longer operational—for the remaining twenty-five, there were no reports of
either cost savings in energy consumption or a lower consumption rate of
energy because of the ECIP project.143 Twelve of the remaining twenty-five
projects after initial projects decreased in scale but nonetheless provided no
evidence of any cost savings for the scale back. 144
For example, one of the ECIP projects contained a proposal for the
collection of solar energy by a photovoltaic array. 145 The purpose of the
photovoltaic array was to reduce three on-base buildings’ reliance on
traditional energy consumption while simultaneously lowering the utility
cost of the buildings. 146 These buildings also contained traditional heating
and air conditioning systems, but the purpose of the photovoltaic array was
to reduce energy consumption of these large consumer systems. 147 The
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
Id.
Id.
Id.
Id.
Id. at 14.
Id. at 13.
Id. at 14.
Id.
A photovoltaic array is a collection solar panels. Id. at 15.
Id.
Id.
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GAO report stated that the photovoltaic array was never purchased because
the bids for the installation of the photovoltaic system were substantially
higher than expected.148 Thus, the three on-base buildings were constructed
without the photovoltaic array. 149 And to pile even more criticism on the
ECIP project, the GAO report stated that the final cost of these buildings—
without the photovoltaic array—was even higher than originally
projected. 150
Another example involves the installation of a photovoltaic array and
daylighting systems. 151 The daylighting systems consisted of skylights
installed on the roof of the buildings, use of fluorescent lights, and a
lighting system that adjusted the amount of artificial light based on the
amount of natural light being provided. 152 The report noted existing systems
that recorded the amount of energy reduced or conserved by the
photovoltaic array; however, no system was in place for staff members to
compute the amount of energy conserved when supplemented with natural
light. 153 The staff told the GAO that did not collect this data because it had
neither the sufficient workforce nor resources to devote to the data
recordation. 154
The GAO provided another example in which measurements were not
recorded and energy conservation and cost savings were not verified.155
This ECIP project centered on the installation of energy efficient lights—
solar daylighting tubes to increase the use of natural lighting and solar
energy throughout building. The use of solar energy throughout the
building required the use of a solar wall that “preheats colder outside air
above 70 degrees and feeds it into a building that reduces the amount of
energy needed to heat the building.” 156 Now, in the northern quadrant of the
building, the wall is built facing the south to facilitate the most exposure to
the sun throughout the year. 157 Unfortunately, the buildings on the
installation that relied on this energy conservation project were part of
secret activities that prevented energy savings recordation personnel from
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
Id.
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Id.
Id. at 16.
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obtaining access to the building. 158 Because of the absence of appropriate
security clearance, these recordation personnel could not perform even a
baseline study to see what the potential energy conservation efforts might
have materialized.159
The GAO report provided examples that the ECIP project was fully
realized and recorded. These reports made up eight of the twenty-one
completed ECIP projects since 2011. 160 A positive example was the use of a
photovoltaic array and energy-efficient lighting used on the exterior of
fourteen buildings, the interior of one building, and around the outside of an
installation. Here, the energy manager reported that the use of the ECIP
project met projected savings and provided data and metrics to validate
both the lower energy consumption and costs of energy to the oversight
committee. 161 In another positive example, the ECIP project used a groundsource heat pump to provide heating to a building. 162 The energy manager
reported that not only did the ECIP project meet the project’s energy
savings level, but also that the level of energy costs saved had already paid
for the project. 163
The GAO report found other problems in the data collection that
supported a suspicion that certain ECIP projects did not reflects the goals
outlined in original project proposals. The report found the military
components and its installation managers had not included personnel to
track and record whether the ECIP project was meeting energy conservation
goals. 164 As a result, many DoD installations have not been able to find a
sufficient workforce or satisfactory resources to record the data necessary to
verify and document the energy conservation.165 One reason for the absence
of this action is due to personnel involved in these projects having the
improper meters for measuring and recording such data; another is that the
installations simply are not equipped with the necessary workforce to
accurately record, verify, and report the data.166
The GAO report noted the Navy is the only service branch before
October 2015 that has issued guidance on reporting requirements for ECIP
158.
159.
160.
161.
162.
163.
164.
165.
166.
Id.
Id.
Id.
Id. at 17.
Id.
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Id.
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projects. 167 The Commander, Navy Installations Command (“CNIC”)
issued the policy in March 2015. 168 The policy states it directly applies to
investments that use funds through ECIP. 169 The Navy guidance requires
energy consumption be reported to the CNIC before the start of an ECIP
project at the contract award for a baseline of energy consumption be
determined. 170 This policy requires that any funds that were awarded under
an ECIP project must report at its inception the amount of energy used. This
is a very important step because, without a baseline data report, there is no
way for energy managers to accurately report on energy conservation or
cost savings. The guidance requires that an annual report on the energy
conservation for each project be submitted in January. 171 The instruction
provides a detailed information sheet which must be submitted yearly. 172
Required fields include:
(1) planning costs,
(2) environment costs,
(3) development costs,
(4) annual electricity supply-side savings, efficiency in
megawatt hours,
(5) annual electricity supply-side savings, renewable in
megawatt hours,
(6) annual consumption savings per commodity (i.e. natural
gas, water, steam, coal, distillate oil, residual oil, gasoline,
chilled water, steam and sewage measured in MBTU/kGal
(7) Annual Savings
(8) Renewable power generated.173
The Navy instruction provides installation and energy managers with
clear guidance on the details that must be reported to ensure ECIP project
167. Id.
168. See Command Instruction 4101.2 from Commander, Navy Installation Command on
Evaluation of Energy Project Investment Performance (Mar. 16, 2015), http://cnic.navy.
mil/content/dam/cnic/hq/pdfs/Instructions/.../CNICINST%204101.2.pdf.
169. Id.
170. Id.
171. Id.
172. Id.
173. Id.
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compliance. The instruction provides specific dates for the information to
be delivered and does not allow for ambiguity of what is expected from the
submitted reports. The reporting requirement concerning the baseline
energy consumption is the most vital because it acts as the keystone against
which all subsequent data reports can be measured. The baseline energy
report sent to the CNIC ensures ECIP projects are properly being evaluated
and measured. This documentation provides proof to congressional
oversight that there is a legitimate need for the allocation of additional
funds to continue and expand current and future ECIP projects within the
DoD.
In addition, the GAO report points to a Department of Energy instruction
that also serves as an outline for reporting energy savings, energy costs, and
energy consumption in relation to ECIP projects.174 This instruction
provides examples of energy conservation metrics for the private contractor
to use when seeking a project with the ECIP. 175 The GAO report on ECIP
projects is quick to note the guidance put forth by the Department of
Energy is primarily used for much larger projects than are proposed through
ECIP, but the guidelines can aid in providing a rubric for reporting
requirements for energy installation managers. 176
Again, for the ECIP program to receive additional funding and serve as a
centerpiece for other agencies in both the DoD and the federal government,
accurate reporting must be submitted for review. At current levels of
reporting by managers of the ECIP projects, a third-party reviewing the
reports might question why any money was invested in a program that
reported only limited data and metrics on energy conservation and energy
savings. The same independent reviewer might even be repulsed by the
complete dearth of information available on the projects, giving more
credence to someone entertaining ideas of shutting down the program and
transitioning to a different energy conservation and cost savings plan.
Guidance requires that ECIP funding exist only for projects that lower
energy costs or result in energy savings. 177 The lack of reporting hurts the
projects that have proved beneficial. The greater amount of reporting can
only help to highlight the projects that have substantially met or gone
beyond the anticipated energy savings and cost reduction. This allows
reviewers to commit to a thorough study and implement the same kind of
174. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 17-18.
175. Id.; U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-432, Energy Savings Performance
Contracts (2015).
176. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 17.
177. Dep’t of Def. Instruction 4170.11, supra note 37, at 13.
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processes and projects that enabled successful projects to meet its energy
conservation goals projected at the outset of the ECIP project.
V. DoD’s Strategic Vision for Energy Conservation
Not Bearing Out Results
Keeping energy conservation in mind when creating construction
projects and remodeling existing DoD installations is more difficult in
actual practice than originally conceptualized—even if Congress clearly
displays confidence in the DoD’s ability to reach certain energy
conservation goals. 178 The GAO report notes that the DoD has implemented
a policy with goals of creating and sustaining far-reaching energy results:
We reviewed the 102 projects funded by the military services
since DoD’s guidance was issued in fiscal year 2011, and found
that about 10 percent of ECIP project proposals anticipated
significant benefits in energy consumption, costs or security,
while about 80 percent of projects anticipated traditional benefits
such as the installation of energy-efficient equipment. 179
The GAO report found seven projects that were funded by the ECIP
program and could have used money already dedicated to maintenance and
repairs. 180 These seven projects represented misallocations of funds,
substantiating calls for greater scrutiny in the allocation of funds for
projects within ECIP.
The policy guidance issued in 2011 outlined the following six areas
where ECIP projects should be focused on “(1) performance improvement,
(2) implementation of new technologies, (3) integration of multiple
technologies, (4) incorporation of renewable energy with storage, (5)
implementation of an energy security plan, and (6) meeting energy
goals.” 181
The GAO report found ten ECIP projects containing three elements that
improved efficiency in energy consumption, costs, and improvements to
installation security. 182 One of those projects is a Marine Corps project that
uses methane gas from an onsite landfill to provide the prime mover for a
178. Cameron E. Tommey, Moving Military Energy "Behind the Fence:" Renewable
Energy Generation on U.S, 6 WASH. & LEE J. ENERGY, CLIMATE & ENV'T 592, 612 (2015).
179. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 19.
180. Id.
181. Id. at 20.
182. Id.
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turbine which generates electricity for Marine Corps Air Station in
Miramar, California. 183 Using methane gas generated from inside the
perimeter of the installation served as a secondary power supply in the
event of a failure to the civilian power grid.184 This kind of ingenuity is
sound for redundancy planning, but if the project proves to be successful,
the same plan could be implemented on a larger scale.
As the GAO report noted, the use of a primary energy mover completely
within the Marine Corps installation addresses two potential security threats
to the DoD and goals of ECIP. 185 First, it slows the reliance on more
traditional modes of energy consumption and puts the energy generation
completely within an area where a DoD entity can protect, secure, and
manage the energy product. Second, it reduces the pull on the American
taxpayer by relieving the installation of having to pay for utility costs. If
there is human activity on the base, waste very likely will be generated.
Using methane gas from the waste in the landfill for power generation falls
in line with the Marines making use of every asset given to them to execute
a plan.
The GAO report lists an Army project which also meets the two
elements of improving energy consumption: (1) lowering costs associated
with energy consumption and (2) providing for improvement in the Army
installations security apparatus.186 The Army Depot in Toole, Utah, has
awarded a contract to build a 1,500-kilowatt wind turbine. 187 Along with
being an ECIP project, the wind turbine concurrently fulfills the need of a
DoD installation to meet the renewable energy plan detailed by the Energy
Policy Act of 2005. 188 According to the GAO report, this wind turbine will
be the installation’s second wind turbine. 189 And two wind-powered
turbines can provide enough energy to meet up to sixty percent of the
installation’s energy needs. 190 The windmills are also part of the Army’s
Net Zero plan, which aims to lower its energy consumption rate to a “net”
of zero. Similar to the previously mentioned methane powered turbine at
Miramar, the Toole, Utah ECIP project meets the two elements outlined in
the aforementioned GAO report. The energy production lowers the need for
183.
184.
185.
186.
187.
188.
189.
190.
Id.
Id.
Id.
Id.
Id. at 20-21, 39.
Id.
Id. at 20.
Id.
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the depot to depend on outside civilian energy producers, in turn lowering
the amount of money paid out for energy needs. From a security
perspective, the two windmills are completely contained within the baseinstallation, such that reducing the workforce needed to guard the energy
infrastructure in the event of a threat is a viable option. This ECIP project is
tailored to fit the DoD’s needs.
With modern technological advancements, the DoD can embrace new,
emerging technologies to reduce the workforce typically required to
maintain old power grids. The GAO report discusses a Navy ECIP project
at Joint Base Pearl in Harbor-Hickam, Hawaii, that focuses on improving
three key areas: (1) establishing energy consumption standards; (2)
reducing energy costs; and (3) providing greater security to naval facilities
through advancements in cyber networks. 191 This particular naval project
effectively connects a cyber-secured microgrid to a wastewater treatment
plant, current traditional and renewable power generation operations, and a
hydrogen fuel cell. 192 The project monitors the various self-contained power
generators to ensure that the wastewater treatment plant remains online in
the event the civilian utilities from which it receives most of its power fails,
causing a power outage. 193 In other words, the microgrid monitors the
power to the waste water treatment plant, relieving the need for actual
personnel to spend hours meticulously monitoring for power failure. 194
However, this also creates another problem: ensuring the micro-grid is
secure from cyber-attacks. Addressing such topics is beyond the scope of
this article, but these projects provide examples of the appropriate ingenuity
of an ECIP project that drives the very notion of energy conservation.
The Navy has other areas within its department where an ECIP project
might advance energy conservation, e.g. improving steam plants on large
amphibious land ships. The steam plant on LHD’s 195 involves miles of
tubing that transit through all levels of the ship. Thus, there are many areas
where the boiler and piping for this system may lose thermal energy. This
increases energy consumption, giving rise to the legitimate belief that these
systems can benefit from improvements under an ECIP project. Applying
new innovations that prevent heat loss are worth considering in these areas.
That is not to say that the Navy has yet to implement new, innovated
191. Id. at 20-21.
192. Id. at 21.
193. Id.
194. Id.
195. “LHD” stands for “Landing Helicopter Dock” and is an amphibious assault ship
used by the United States Navy.
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technologies into its operations. For example, the Navy’s reliance on nontraditional energy sources, such as nuclear power, to propel submarines and
aircraft carriers predates ECIP. 196 The US Navy has used nuclear power for
its ships for over fifty years. 197 The DoD’s new guidance on energy
conservation through ECIP programs can establish the same long-standing
energy result produced by the Navy’s nuclear power program in the years
leading to ECIP adoption.
The Dugway Proving Ground in Utah provides an example of the DoD’s
implementing energy conservation technology. At Dugway, the plan
involved installing a two-megawatt solar photovoltaic array, integrated with
energy storage and microgrid control systems, and other advanced metric
reading technologies that promote effective management of this new energy
system. 198 Dugway illustrates the integration of energy conservation plans
into numerous DoD installations that exist for the sole purpose of meeting
the requirements to receive ECIP project approval. 199 In sum, the
photovoltaic array exists to unite various buildings and energy consumers at
Dugway, thereby streamlining use and management of on-base energy.
Again, the array provides an avenue for energy production that is “organic”
and powers a comprehensive system that monitors and records the energy
consumption generated by the solar array. If the Dugway ECIP project is
successful, it will increase the likelihood that similar ECIP projects
emphasizing solar photovoltaic arrays can be approved across other DoD
installations.
The ECIP project at Fort Bliss, Texas, is another example of renewable
energy integrated with energy-storage technologies. The Fort Bliss project
has 500-kilowatt photovoltaic array and a 1-megawatt storage battery that
supplies backup power to 2 mission essential buildings in the event of a
long power outage. 200 Both the Fort Bliss ECIP project and the project at
Dugway are examples listed by the GAO report as “game-changing”
projects. 201 But these kinds of large scale projects are less likely to be
196. Shinri Kamei, Dartmouth Undergraduate Journal of Science, Nuclear Marine
Propulsion: The History of Nuclear Technology (Mar. 12, 2013), http://dujs.dartmouth.edu/
2013/03/nuclear-marine-propulsion-the-history-of-nuclear-technology/#.WI_4RmczXGg
(last visited May 18, 2017).
197. Id.
198. U.S. GOV’T ACCOUNTABILITY OFF., supra note 3, at 39.
199. Id.
200. Id.
201. Id. at 22-23, 39.
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funded because of the low return on investment ratio. 202 The GAO report
refers to ten game-changing projects that save an average of $7.3 million
and have a ratio of return of 1.1.203 However, the GAO report outlined
ECIP projects that yielded a low return and were consequently countered
with more traditional projects because of the higher return-yield ratio. 204
Although some examples of ECIP projects containing more traditional
scope and benefits may include photovoltaic systems, these projects are
much smaller in scale. These smaller systems might include a photovoltaic
array that is dedicated to one building on a DoD installation or even
installing skylights to increase natural lighting and thus reducing the need
for electrical lighting during daylight hours.205
Another example of traditional landmarks observable at many DoD
installations: steam-lining pipelines that crisscross different installations.
But replacing and/or removing the steam lines and old heating systems with
modern, energy efficient electric heaters in a singular building are typically
those “traditional” funded projects. 206
The removal of the steam lines nullifies the need to use energy as a
means to propel thermal energy through miles of piping within an
installation. Furthermore, traditional projects receive a higher approval rate
because they are easier to illustrate and more convincing to authorities than
ECIP projects. In general, traditional “non-game-changing” ECIP projects
usually provide a larger cost reduction on energy consumption. The GAO
report supports this contention by noting that Acquisition, Technology, and
Logistics officials are more likely to award a traditional ECIP project for
two reasons: (1) the investment return for traditional ECIP projects are
generally higher; and (2) even if newer, non-traditional ECIP projects
further a greater energy conservation purpose, the mere difficulty that
accompanies energy conservation metric documentation is itself
dissuading. 207 The bottom line: Officials with the authority to approve ECIP
projects want to approve something they know will directly benefit the
DoD by reducing energy consumption and the costs incurred because of its
consumption.
When examining traditional ECIP projects that promote energy savings,
the approving agency typically looks for benefits in the form of an
202.
203.
204.
205.
206.
207.
Id. at 22-23.
Id.
Id.
Id.
Id.
Id.
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investment return with a ratio of 2.0.208 or better. This means for every
dollar spent on the ECIP project, the project should return two dollars in
savings. Traditional projects often receive more funding than intricate,
complex, and expensive ECIP projects. But more expensive ECIP projects
typically have a lower return on investment. Because of the lower return on
investment ratio, the viability of these projects is usually not selected. Thus,
limiting the possibility that more complex ECIP projects might generate the
greatest benefits. Like the Navy using nuclear power as its primary
propulsion source in its submarines, the more expensive ECIP projects
might integrate a technology that could drastically reduce energy
consumption over the next fifty years.
VI. Need for Energy Conservation Further Stressed
by Homeland Security Threats
The private, civilian marketplace supplies DoD installations with nearly
ninety-eight percent of all their energy. 209 As a result, domestic DoD
installations are terribly susceptible to energy outages due to severe weather
events, increased energy demand from civilian consumers, occasional
accidents at power generation facilities, and—new to the scene—cyberattacks. 210 This dependency, in turn, creates an unacceptable risk to
homeland defense security for both foreign and domestic DoD
installations. 211 Because the DoD’s energy footprint is four times that of
leading retail franchises like Wal-Mart—and ten times that of the General
Services Administration—relying on energy from the civilian marketplace
puts the DoD’s energy infrastructure in a particularly vulnerable position. 212
But since the discovery of oil in the Middle East and well-established
infrastructure favoring fossil fuels, the US has a legitimate interest in
ensuring the steady flow of oil into the global energy market. The US and
its allies, who depend on the DoD’s strength to provide protection in times
of need, rely on the DoD to ensure it protects collective economic and
energy needs. This extreme interest has deep meaning: the DoD has
engaged in armed conflict to ensure that energy needs of the country and its
allies have been satiated. In other words, the purpose of armed conflict in
the world’s massive oil producing regions transpire to ensure oil prices
208.
209.
210.
211.
212.
Id.
Warner supra note 1, at 3.
Tommey, supra note 178, at 596.
Id. at 597.
Id.
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remain at a level that does not burden consumers—this includes average
Americans and the DoD.
This dependence on oil is even more glaring when you consider the
entire cost of oil-based fuel as the prime mover in a conflict. The cost of
fuel is not limited to the price per barrel—it also includes the cost
transporting fuel to the battlefield and the approximate need for fuel at any
given instance. 213 This raises a question: Is the cost of fuel or energy much
higher because the military had to bring the fuel from a foreign country
where supply is comparatively limited?
A relatively straightforward example involves looking at an
ordinary $15,000 tent used in the deserts of Iraq or Afghanistan.
To beat the 120 degree heat, the thin-walled, uninsulated tents
must be air-conditioned. With the air-conditioners kept on at all
times and cool air leaking out of the tents, massive amounts of
fuel must be trucked into camps. The true cost of that $15,000
tent jumps to $40,000, accounting for the $25,000 worth of air
conditioning. 214
The dollars spent on energy produced from fossil fuels, in terms of cost, is
more valuable during an armed conflict because of the added expense of
moving the fuel to the conflict and the cost of keeping DoD personnel
available to manage and subsequently use the fuel energy. 215 The need to
conserve and make the most efficient use of such energy is important to the
DoD given the significant energy it consumes merely to maintain
operations.
There is another important consideration: the vulnerabilities and threats
inherent in dependence on one energy source, such as fossil fuels. General
James Amos once stated that the goal of the DoD is to create a more energy
efficient force—one capable of using less energy and able to achieve
greater results with far less consumption. 216 An example of operational
energy costs is the Second Afghan War, in which the British incurred costs
213. Jennifer Huang, Energy Security Green Fleets, and Green Warriors, 8 FLA. A & M
U. L. REV. 263, 274 (2012).
214. Id. at 274.
215. Id. at 274-75.
216. Siddhartha M. Velandy, The Green Arms Race: Reorienting the Discussions on
Climate Change, Energy Policy, and National Security, 3 HARV. NAT’L SEC. J. 309, 314
(2012); William T. Eliason, Interview with General James F. Amos, Commandant, United
States Marine Corps, JOINT FORCES Q. 12, 16 (2012) (“The goal is to create a more capable
force: lighter than today, less dependent on liquid and battery logistics, with greater
operational reach at less risk.”).
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while fighting between 1878 and 1880. 217 At this time in history, there was
a potential conflict brewing in the region between England and Russia. The
English and Indian troops pushed through the Khyber Pass into
Afghanistan. The energy required to keep the army moving—their “supply
lines”—stretched all the way back to India. Thus, as the supply chain
moved through the mountains, the supply chain became vulnerable to
attacks from local Afghan forces. The English had to commit more troops
to protect their supply line.218 In time, the Afghans completely intercepted
the English supply train and forced the English to consolidate in Kandahar
where the Afghans surrounded the British forces. 219
Another British force in Kabul—12,000 men led by General Roberts—
was tasked with rescuing the besieged force in Kandahar.220
In order to make the march from Kabul to Kandahar, he planned
for and used a long and robust supply train that included 8,500
mules, donkeys, and camels, accompanied by thousands of
servants and transport material. General Roberts required and
purchased 5,000 sheep to feed his men and 15-30 days of
essential supplies including vegetables, bread, rum, sugar and
other spices . . . . A reliable source of energy is critical to
mission accomplishment. 221
Becoming less dependent on overseas oil and focusing on oil produced
domestically has a twofold benefit. First, it will either limit or completely
eliminate the DoD’s involvement in global conflicts in oil producing
regions. Second, it promotes greater energy conservation by creating a
demand for alternate means of energy production within the US. 222
Cultivating and using domestically-produced energy will provide DoD
installations with greater flexibility in the event of domestic terrorist
operations. This cultivation allows each DoD installation to have its own
power grid and thus produce its own energy for use in such contingency
situations.
It is important to understand that the ECIP and its projects were
developed to promote both energy independence and energy conservation
217. See Velandy, supra note 216, at 322.
218. See generally J.H. Anderson, THE AFGHAN WAR: 1878-1880 5 (R J Leach Mil.
Publishers 1991).
219. Velandy, supra note 216, at 323-24.
220. Id.
221. Id.
222. See Tommey, supra note 178, at 609.
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in the DoD. The ECIP’s projects that have proven beneficial go to the
essence of superior tactical, operational, and strategic goals that the DoD
aims to provide through its in-depth security defense structure, while also
maximizing its use of its energy resources—renewables and nonrenewables alike. If truly successful, the new energy resources and
technology will be used to ensure the DoD maintains its hegemony of
power. New and innovative power sources can flow into the civilian market
to decrease energy costs for both the DoD and the consumer.
For example, the Department of Energy used one of its laboratories to
study areas in the continental US to realize a plan focused primarily on
renewable energy resources. One example of using purely local means of
creating energy is in the Vermont timber market.223 Due to many local mills
and manufacturing plants closing, the area was left with an abundance of
wood biomass. 224 The end of operations of the timber industry and
manufacturing left large areas of timber untouched in Vermont. 225 The
laboratory examined the timber industry, ranging from Maine to Florida, as
potential channels to provide fuel sources for generating both heat and
electricity. 226 Because the timber industry already existed in Vermont, the
cost of bringing the industry back online would not be too costly—and the
cost of transporting the biomass would be minimal if sent to a local power
generation facility. 227 The National Renewable Energy Laboratory study
reflects how the former timber industry can be reallocated for energy
consumption and conservation needs through the use of the timber for
electrical power generation. 228 Since DoD installations rely in large part on
private companies to satisfy their energy needs, installations on the eastern
coast of the US could potentially use energy created from the biomass fuel.
Another Department of Energy study considered Fort Hood as a viable
candidate for future placement of photovoltaic cells for electricity
generation. 229 The study focused on areas of the country with large tracts of
land where solar cells could be sited. 230 Other factors included the amount
of time the sun was clearly visible for optimum use of solar energy; the
distance from solar cells to electrical power lines for transmission; and the
223.
224.
225.
226.
227.
228.
229.
230.
Id. at 616.
Id. at 617.
Id.
Id.
Id.
Id.
Tommey, supra note 178, at 618.
Id. at 619.
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proximity of serviceable roads to service the solar cells.231 Fort Hood
appeared to be a viable candidate in which the installation could begin
investing in solar energy projects. Although the study concluded that the
land available was insufficient to site the solar arrays, it did propose placing
fifty acres of arrays on buildings on Fort Hood. 232 Indeed, another factor
contributing to the installation’s decision not to plant the solar arrays was
that the electricity supplied to the area was sold at a low rate.233 Fort Hood
had to ensure that investing in solar arrays would foster some economic
benefit to the installation as a whole. But because of the prevailing utility
rates in the area, the momentum to realize a project of this magnitude did
not exist. 234 This is further evidence of the hurdles confronting ECIP
projects at DoD installations. Despite the small scope of the ECIP
compared to the rest of the DoD, the ECIP provides the DoD with many
opportunities to upgrade its installations and take steps toward maximizing
energy conservation.
Fort Bragg, North Carolina, illustrates one final example where both the
DoD and US Army attempted to implement energy conservation efforts. If
these efforts had come to fruition, the result would have substantially
strengthened the installation’s security. North Carolina makes up about
three percent of all the electricity consumption in the US. 235 But the State
does not generate enough electricity on its own to meet the needs of its
consumers. 236 The electricity generated in North Carolina is primarily
dependent on fossil fuels. 237 Although North Carolina is home to four of the
largest coal-fired power plants in the country, 238 most of the coal used in
these plants is imported from Kentucky and West Virginia. 239 Compared to
North Carolina’s massive non-renewable portfolio, its renewable energy
portfolio is a mere three percent of the state’s total electricity generation.240
Fort Bragg used approximately 599,374 megawatt-hours of electricity,
accounting for fifty-nine percent of the installation’s total energy
231. Id.
232. Id. at 619-22.
233. Id. at 619.
234. Id. at 619-22.
235. Peter H. Ledford, Practical Considerations in Implementing Renewable Energy: A
Case Study of Fort Bragg, North Carolina, 2 WAKE FOREST J.L. & POL’Y 533, 534 (2012).
236. Id.
237. Id.
238. Id.
239. Id. at 535.
240. Id.
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consumption in 2008. 241 But most of the energy it consumed was for
heating and cooling numerous on-base buildings. 242 The DoD’s ECIP
program exists to find ways to move away from the total reliance on energy
or supply chain of energy from civilian utility. The ECIP’s ingenuity could
even be applied to installations like Fort Bragg in North Carolina that
could, in turn, provide energy to civilian entities near the installations.
Because electricity costs are cheap in North Carolina—that is, until
technology or practices come along to make energy consumption even
cheaper—replacing the dependency on prevailing energy infrastructures
like fossil fuels will be more difficult.243
Where ECIP promotes energy conservation through proper stewardship
and continual efforts to apply new energy conservation technologies, there
are other ways to implement energy conservation. Of course, in achieving
this goal the DoD will reach its primary objective of protecting the nation.
It is apparent that national security and energy conservation are two
concepts that work in tandem.
Is it even possible to provide a monetary incentive to DoD installations
and commands? After action reports from the Navy’s Naval Sea Systems
Command (“NAVSEA”) from the 1980s provided evidence that giving
incentives to the crews of Navy ships for lowering energy consumption can
be worthwhile. 244 In this program, NAVSEA assembled a team made up of
their Energy office to examine the fleet’s fuel oil consumption on board
steam, gas turbine, and diesel powered ships. 245 The NAVSEA teams
examined over 100 ships and observed a ten to fifteen percent fuel savings
on gas turbine and diesel powered ships.246 The team found a fuel cost
savings of up to thirty percent on steam powered ships. 247
Just before the first Gulf War began, the NAVSEA program was
disestablished. After a series of unfortunate occurrences and the advent of
the first Gulf War, the domestic United States saw higher gas prices. In
response to these events, the Navy chose to reintroduce its NAVSEA
program. 248 Through the program, the Chief of Naval Operations authorized
241. Id. at 536.
242. See id. at 535-36.
243. Id. at 534-35.
244. See H. Pehlivan. Want Energy Conservation? Try Incentive., NAVAL ENGINEERS J.
193 (2000).
245. Id.
246. Id.
247. Id.
248. Id.
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an instruction for a ship to receive cash awards of up to forty percent of the
fuel expenditure saved.249 The rest of the fuel savings money would then go
to facilitate other repairs on ships throughout the CNIC. 250
During the 1999 fiscal year, US Navy ships used over $600 million of
fuel. But the NAVSEA program rendered savings of around $26 million. 251
Along with the benefit of saved money, restricting lower fuel consumption
allows the fleet to travel greater ranges because the slower a ship runs, the
less fuel it expends. If ships are using less fuel, then they do not need to be
refueled at sea as often, which also lowers the amount of fuel needed for
refueling ships to rendezvous with at-sea combatants. The extra fuel allows
for crews to embrace a more rigorous training regime since it is vital to
keep a standing naval force ready for conflict at any time. More efficient
crews create a better security apparatus for the US and for the sea lanes of
the world. This lowers transportation costs and directly benefits consumers.
The lower the fuel consumption, the less stress the machine will
experience. If well-maintained, this allows the ship to be in service longer.
Expending less fuel helps the environment because the ship will have a
much smaller carbon footprint. Navy ships use various seawater suction
pumps to help cool the ship and the ship’s machinery, but lower fuel
consumption decreases the need for such cooling. This will also reduce the
detrimental effects that generally occur in oceanic environments. Other
tertiary effects of using less fuel bolster the argument for conserving
energy, but the most compelling reason for commanding officers of ships is
that their command gets to keep a part of the money saved on fuel costs.252
An excellent example comes from one ship saving over half-a-million
dollars in one fiscal quarter.253 The ship accomplished this while on a
counter-narcotic mission off the west coast of the US and Mexico. 254 The
deployment required the ship to be on station in certain areas where the
commanding officer ordered for the main engines to be shut off. 255 Then the
ship would drift, not expending any fuel. The commanding officer
implemented further energy conservation practices as promulgated by the
Chief of Naval Operations. 256 Other DoD installation commanders can take
249.
250.
251.
252.
253.
254.
255.
256.
Id.
Id.
Id. at 194.
Id. at 193-94.
Id. at 194.
Id.
Id.
Id.
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the same kind of approach; even in small steps, and lessen the energy
consumption of the DoD and its agencies.
To determine how much fuel the individual ships were saving, NAVSEA
conducted a study to determine a baseline for fuel consumption.257 Energy
conservation teams boarded different ships while they were out to sea. 258
The ships would then align their propulsion and electricity generation plants
in certain configurations and travel at different speeds to determine the
most fuel-efficient equipment configuration. NAVSEA developed different
energy conservation plans based on the size of the ship, number of shafts,
engines, and generators on board. 259 The energy conservation teams learned
that the ships were the most fuel efficient when they traveled under 14-16
nautical miles per hour and had only one main engine and shaft online. 260
After the diagnostic test, the ship would then report quarterly—this was the
existing reporting requirement—the fuel consumption of the ship.261 The
energy conservation teams then looked at the ship’s historic fuel
consumption over the past three years when the ship was out to sea to
determine how much fuel a ship conserved and then make a monetary
award back to the ship. 262
This sort of baseline energy conservation is needed for ECIP projects.
The Navy had pre-existing reports in place for fuel consumption and could
determine what affect the incentive program had by merely examining a
then-existing reporting system. ECIP projects can use existing energy
consumption reports to easily reflect the benefits of an ECIP project.
Lessening the need for civilian generated energy will make our national
security structure more secure and viable. This energy conservation
program provides evidence of how DoD commands can use incentives to
motivate DoD employees and installations to conserve energy. In the future,
the ECIP could incentivize its program by issuing a directive in the program
that awards more advanced and complex ECIP projects to bases that have
already succeeded in implementing an ECIP project.
257.
258.
259.
260.
261.
262.
Id. at 194.
Id. at 194-97.
Id.
Id.
Id.
Id. at 194-95.
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VII. Conclusion
Through its military services, the DoD is seeking ways to use new and
alternative means of energy to meet various federal statutes and guidelines.
The ECIP identifies several technologies to help further this goal. More
time will be needed to fully apprehend the full measure of compliance and
eventual benefits or detractions. The immense size and scope of the energy
consumption by the DoD create a need for more efficient energy resources.
The implementation of the ECIP through DoD installations is a proving
ground for developing energy conservation technologies that may benefit
not only the DoD but society at large.
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